The Freedom of Information Act is a federal law requiring federal agencies to respond to formal requests for information and to release documents if they do not fall under exemptions. Most states also have FOIA laws and nearly every agency at the state and federal level has a designated FOIA officer, which is usually someone in the agency's public affairs office.
When federal FOIA laws were passed into law in 1966, no one in Congress spoke against the idea. In fact, the law passed unanimously in the House of Representatives. One senator said it was a "historic victory for the public's right to know what their government is doing."
In signing the legislation July 4, 1966, President Lyndon Johnson said the bill "springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the nation permits."
This enthusiasm for freedom of information was by no means an exclusively federal perspetive. At the time, over half the states had already passed FOIA bills and companion legislation about open meetings, called "sunshine" laws. Since then, nearly all states have adopted FOIA and sunshine laws.
At the time, it was simply taken for granted that the American people have a right to know about government, and that was considered uniquely American, something that did not happen in London or Paris, much less Moscow or Beijing. "The British government ... is quite openly and without shame regarded by both civil servants and political ministers as a sacred mystery on not account to be explained to the uninitiated," wrote one London Times reporter in 1966. Washington DC, on the other hand, was a town where "all hearts are open, all desires known and no secrets are hidded (at least for long)." (Anthony Howard, The Bureucratic Curtain, New York Times, Oct 23, 1966).
Since then, every administration has issued its own interpretations of the FOIA. President Bill Clinton's attorney general, for example, said that documents should only be withheld "if disclosure would be harmful."
By the 21st century, especially in the wake of the World Trade Center attacks of 9-11, the US government moved to clamp down on openness in government, and Bush administration said documents should be withheld "if there is a sound legal basis for doing so." The change in wording was considered to be a significant blow to openness in government, and the Bush administration became known for a secretive approach to government.
In contrast, President Barack Obama, on his first day in office, signed an executive memo opening government documents, saying that in the face of doubt, openness should prevail.
Progogue to tragedy, July 2009
"Response" from the US Office of Surface Mining
to an FOIA request for a study of sludge dams in Appalachia:
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| "Study Conclusions" start 2/3 of the way down the page... |
Second and final page of "conclusions" |
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Even so, there have been many protests by news organizations and FOIA watchdog groups over the lack of accountability and responsiveness by federal agencies during the Obama administration as well as those before it. The fact that many news reporters and photographers have been turned away from cleanup areas surrounding the BP Gulf of Mexico oil spill in the summer of 2010 was cause for a good deal of protest from the media.
For example, a "response" to the author's FOIA request to the Office of Surface Mine and Reclamation in 2009 contained several hundred pages of blanked out documents, such as these from the executive summary.
There are many specific cases involving the FOIA that can be found in the http://openthegovernment.org/ and the Reporters committee for freedom of the press – rcfp.org
Exemptions to FOIA
Initially the idea behind FOIA was to open all records except
in circumstances that were exempt:
The law enforcement exemptions include anything that would deprive person
of fair trial, unwarrented invasion personal privacy, disclose confidential
sources, disclose investigative techniques, endanger life or safety of anyone.
At the
state level, major exemptions are similar. Although there is no national security exemption, there are law
enforcement, personnel, and pending litigation exemptions, as well as property purchase or sale discussions, information about toxic waste, and
over 100 loopholes in the law.
For example in Virginia, before the law was overhauled in 2000, routine requests for records in all kinds of areas were being denied. A state survey found that requests for information about incidents involving police were appropriately answered by only 14 percent of the state's police jurisdictions.
In 1999, an incident at Radford University showed how far the practice of the law had strayed from its original intended purpose. State police turned down a Radford University student newspaper request for a copy of a report concerning a student who was run over by a reckless city policeman.
In turning down the request, the state police did not take note of the FOIA law section that said: "The affairs of government are not intended to be conducted in an atmosphere of secrecy ..." and that the FOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government."
Instead, the request was denied since another section said that anyone involved in an accident, and his or her attorney or insurance company is allowed a copy of the accident report. Apparently the pretense was that this was an exclusive list.
The state legislature took a dim view of the pretense, and a sweeping review
of Va. FOIA law was undertaken in 2000, supported not only by Va Press Association but also the Society of Professional Journalists and the Virginia Library
Association. The legislation established a Freedom of Information Advisory Council that hears questions and complaints directly from citizens. The council has also pointed out that all state agencies have been required to post FOIA informtion on their web sites -- a reqirement that many agencies seem not to have taken seriously.
Using the FOIA
It's simple; you write a letter
stating you wish to see certain records and have a right to do that under FOIA.
State agency has 10 days to respond (federal agency 20 days). What usually happens
is that they say they'll call you when they find them. Unfortunately, many state
agencies require FOIA process for the simplest kinds of information.
Other problems include very long lead times for reporting and very heavy
editing.
In 1996, Congress passed Electronic FOIA Act,
requiring agencies to make decision about documents before request and publish
some on line: also detailed indexes to make it easier to know what is held;
and established a stricter timetable.
Sunshine laws
** Sunshine laws are similar to FOIA laws,
but require that local, state or federal legislative or executive hearings take
place in public buildings with adequate notification to the public. Executive
sessions are possible under some circumstances (personnel, legal issues, for
example) but all decisions must be made in public sessions.
Buckley Amendment 1974 -- said colleges that dont keep records
private may be ineligible for federal aid. This has been widely applied to crime
and judicial boards on college campuses.
Bauer v. Kincaid,
1991, a federal appeals court said state laws requiring open records overrides
federal law. Still, the debate over campus privacy versus freedom of information
is not settled.
Links:
Virginia Freedom of Information
Council judges appeals and requests concerning FOIA problems. Also has law
with listing of exceptions to Virginia FOIA.
Roanoke Times Op-Ed piece on Radford
City police and the need for an FOIA Council.
RCFP web site
.
RCFP comparison of state by state FOIA laws.
